Lawyer Jacob Frenkel Quoted in New York Law Journal Article on SEC Administrative Law Judges

Washington, D.C. Lawyer Jacob Frenkel recently was quoted in the article “Ruling May Tee-Up Power of SEC ALJs for High Court Review,” published by the New York Law Journal, regarding the U.S. Court of Appeals for the Tenth Circuit’s decision in Bandimere v. U.S. Securities and Exchange Commission.

The decision declared that the way the SEC appoints Administrative Law Judges violates the Constitution and sets up a clean split among the circuits and may implicate the validity of administrative proceedings in other areas of government. The decision is in direct conflict with the D.C. Circuit’s decision in Lucia v. SEC and may find its way to the U.S. Supreme Court later this year for review.

“The appointments clause issue is fixable and it’s reasonable to expect that the Supreme Court is not going to permit years of ALJ decisions, let alone decisions upheld by the full commission, to fall on a technical issue,” Frenkel told the New York Law Journal. “It would be far more meaningful for these cases to address the more significant issue of prejudice and these modest, prophylactic fixes that the commission embraces as concession do not go far enough to protect the rights of defendants.”